Judge Not

'Who watches the watchmen?' asked the ancient Roman Juvenal (that's quis custodiet ipsos custodes? for you Latinists). In the case of federal judges, it's a government agency called the Administrative Office of the U.S. Courts - and it recently got a little too curious about how judges and their staffs spend their time on line. Now some judges have been having quite public second thoughts about the now-common business practice of monitoring employee e-mail and Internet use.

Usually, these judges are ensconced safely on their benches, sagely holding forth on what businesses that want to keep track of employees are and are not permitted to do. But last May the Administrative Office began to raise hackles by screening and reporting the online activities of employees of the federal court system itself. Some judges staged a minor revolt: For a week, several judges in the ninth circuit court of appeals halted use of internal monitoring software on their computers. The dispute descended into bureaucratic wrangling, but no final policy has yet been established.

That's not the end of the story. In an open letter published in the Wall Street Journal, judge Alex Kozinski compared the Administrative Office policy to invasions of privacy federal prisoners are subjected to, and called it 'draconian' and 'bizarre.' He praised court employees, but warned that 'loyalty and dedication wilt in the face of mistrust.'

For those of us not employed by the government, such draconian measures are nothing new. According to the American Management Association, employee monitoring is widespread at large companies. And even the lowest estimates conclude that 20 percent of the American workforce has their Web activity constantly monitored by their employers.

Of course, most employers base their decision to monitor on the common legal understanding - based on judicial precedent - that because employees are using their company's equipment and systems, they have essentially forfeited their right to privacy. But not everyone agrees with that.

According to Kozinski, the administrators may actually have violated federal wiretap rules by monitoring and reporting on employee's Internet use without notifying them. Another federal judge, James Rosenbaum, has gone further. 'The use of an employer's computer should not be equated with the loss of its operator's rights,' he writes. 'A society which values individual freedom cannot function in this way.'

So should we expect a revolution in the courts? Will employers currently monitoring workers' activity suddenly find their legal footing shifting beneath them? Not quite. For now, all these judicial misgivings are theoretical only. Rosenbaum advanced his ideas not in a court decision but an obscure legal journal called The Green Bag.

Still, companies probably should keep close tabs on the courts and state legislatures. Already, California is considering a rule that would make it illegal to monitor employees without notifying them first. And mulling over the judges' thoughts for a few moments won't hurt either.

As Rosenbaum points out, Americans have long opposed so-called 'general searches' - at least when the government conducts them. The revolutionaries enshrined that revulsion into the Bill of Rights. Business owners, then, might benefit from observing the same rough guidelines as government officials: Be as uninvasive as possible. (This is one of the reasons why, in last month's feature on the topic, SBC recommends simply blocking Web sites.)

For companies who are monitoring and suspect they may have a problem with an employee, Rosenbaum suggests instituting a 'cyber time-out.' First, the company informs the employee that they expect to find something incriminating on their hard drive; then they sequester the computer and explain to the employee what they will and won't be looking at. Ideally, the employee would then agree that, yes, the 'c:\MP3s' is fair game, since MP3s violate company policy, and the employer could agree that they've no need to go rooting around in 'c:\loveletters.'

You can take that suggestion or leave it. What's important is to treat employees' concerns about their privacy as legitimate, and as a potential management problem of enormous proportions. Otherwise, you may have a revolt of your own on your hands.

David G. Propson is senior editor for SBC.

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